Is Title IX Directive Legal?

The U. S. Department of Education is using a federal  anti-discrimination statute in a way that is sure to drive even more men off of college campuses, where they are already a minority. “When OCR finds that a school has not taken prompt and effective steps to respond to sexual harassment or violence, OCR will seek appropriate remedies for both the complainant and the broader student population,” Russlyn Ali of the Education Department’s Office of Civil Rights warned university administrators. “When conducting Title IX enforcement activities, OCR seeks to obtain voluntary compliance from recipients.”

“When a recipient does not come into compliance voluntarily, OCR may initiate proceedings to withdraw Federal funding by the Department or refer the case to the U.S. Department of Justice for litigation.”

“Indeed, the letter has already prompted several institutions to curtail the procedural due process rights afforded students accused of sexual harassment or sexual violence; given OCR’s regulatory authority and influence, all institutions of higher education accepting federal funding are likely to follow,” Will Creely of the Foundation for Individual Rights in Education (FIRE) noted in FIRE’s response to the OCR rule. “While it is of course necessary for colleges and universities to address allegations of sexual harassment and sexual violence with all requisite purpose, seriousness, and speed, the rights of those accused cannot be sacrificed simply as a function of the accusation itself.”

As it happens, Ali’s directive may not even be legal. Cornell law professor Cynthia Bowman stated in April that it “is not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.” One of Bowman’s specialties is feminist jurisprudence.

Malcolm A. Kline is the Executive Director of Accuracy in Academia.

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